DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Arguments
Regarding the prior art rejection, applicant’s arguments combined with the claim amendments have been fully considered and are persuasive.
Regarding the rejection under 101, applicant’s arguments combined with the claim amendments have been fully considered and are not found persuasive. Applicant contends that the present claims are similar to Enfish in that they provide a real-world technological improvement in a system for estimating respiration rate from the fusion of different modalities of respiration rate estimation and in turn, improves computer-implemented estimation systems itself. Applicant respectfully disagrees. The claims in Enfish recite specific instructions regarding storage of data in cells, which provided a technological improvement in the processing efficiency and speed, in a specific field. In contrast, the present claims do not offer any improvement in processing efficiency and speed – but rather are focused on solving the problem of integrating “multiple remote measurements of respiration rate so that the final fused estimate is more accurate and robust” ([0047] as referenced in applicant’s arguments). Although the claimed system/method may be more accurate and robust, this is not equivalent to a technological improvement that draws a parallel to Enfish - in fact it one might argue it takes more time to determine a final estimate of the respiration rate using this method. Regardless, simply using an additional measurement and data parameter to come to an end result is not a technological improvement. The examiner maintains that the claims do not require, and the specification does not recite, details or discussion of how the claimed invention provides a technical improvement realized by these claims or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. Accordingly, the rejection is maintained below.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-15 are rejected under 35 U.S.C. 101 because the claimed invention is not directed to patent eligible subject matter. Based upon consideration of all of the relevant factors with respect to the claim as a whole, the claims are determined to be directed to a judicial exception, specifically an abstract idea, without significantly more.
Step 1
The claimed inventions in claims 1-15 are directed to statutory subject matter as the claim(s) recite(s) a method and a system of calculating an estimated respiration rate.
Step 2A, Prong One
Claims 1 and 12 recite the following steps or instructions for “receive/receiving…an audio recording signal…”, “compute/computing…an estimated audio respiration rate…”, “compute/computing…an audio signal quality index…”, “compute/computing…a fused estimated respiration rate…”, and “output/outputting…the fused estimated respiration rate.”, which is grouped as a mental process in MPEP 2106.04(a)(2)(III) and/or or mathematical concept in MPEP 2106.04(a)(2)(I).
These limitations concern data collection, data analysis and recording the results of data analysis, which could be done mentally or by hand with pen and paper, and are directed to mental processes of performing concepts in a human mind or by a human using a pen and paper and mathematical concepts. For example, these limitations are nothing more than a medical professional receiving audio and movement signals previously produced on paper, analyzing the data to compute and estimate the respiration rate, quality index, fused estimated respiration rate, and noting the final result of the analysis/computation.
Accordingly, each of the above-identified claims recites an abstract idea as in MPEP 2106.04(a).
In addition, Claim 1 recites additional elements of an “audio sensor’ and “displacement sensor”. Claims 1 and 12 both recite the additional element of a “processing unit”.
Step 2A, Prong Two
The above-identified abstract idea in each of independent Claims 1 and 12 (and their respective dependent Claims 2-11 and 13-15) is not integrated into a practical application under MPEP 2106.04(d) because the additional elements (identified above in independent Claims 1 and 12), either alone or in combination, generally link the use of the above-identified abstract idea to a particular technological environment or field of use according to MPEP 2106.05(h) and appear to be extra solution activity where data to be analyzed by the abstract idea is acquired or obtained.
More specifically, the additional elements of: “a processing unit”, are generically recited computer elements in independent Claims 1 and 12 (and their respective dependent Claims 2-11 and 13-15) which do not improve the functioning of a computer, or any other technology or technical field according to MPEP 2106.04(d)(1) and 2106.05(a). Nor do these above-identified additional elements serve to apply the above-identified abstract idea with, or by use of, a particular machine according to MPEP 2106.05(b), effect a transformation according to MPEP 2106.05(c), provide a particular treatment or prophylaxis according to MPEP 2106.04(d)(2) or apply or use the above-identified abstract idea in some other meaningful way beyond generally linking the use thereof to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception according to MPEP 2106.04(d)(2) and 2106.05(e). Furthermore, the above-identified additional elements do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer in accordance with MPEP 2106.05(f). For at least these reasons, the abstract idea identified above in independent Claims 1 and 12 (and their respective dependent Claims 2-11 and 13-15) is not integrated into a practical application in accordance with MPEP 2106.04(d).
Moreover, the above-identified abstract idea is not integrated into a practical application in accordance with MPEP 2106.04(d) because the claimed method and system merely implements the above-identified abstract idea (e.g., mental process and using mathematical concepts) using rules (e.g., computer instructions) executed by a computer (e.g. “a processing unit” as claimed). In other words, these claims are merely directed to an abstract idea with additional generic computer elements which do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer according to MPEP 2106.05(f). Additionally, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims according to MPEP 2106.05(a). That is, like Affinity Labs of Tex. v. DirecTV, LLC, the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution. Thus, for these additional reasons, the abstract idea identified above in independent Claims 1 and 12 (and their respective dependent Claims 2-11 and 13-15) is not integrated into a practical application under MPEP 2106.04(d)(I).
Accordingly, independent Claims 1 and 12 (and their respective dependent Claims 2-11 and 13-15) are each directed to an abstract idea according to MPEP 2106.04(d).
Step 2B
Claims 1 and 12 do not include additional elements that are sufficient to amount to significantly more than the abstract idea in accordance with MPEP 2106.05 for at least the following reasons:
These claims require the additional elements of: “a processing unit”, which is a generically claimed computer component which enables the above-identified abstract idea(s) to be conducted by performing the basic functions of automating mental tasks. The courts have recognized such computer functions as well understood, routine, and conventional functions when claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. See, MPEP 2106.05(d)(II) along with Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); and OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93.
Claim 1 recites the additional elements of “an audio sensor” and “a displacement sensor”; however, these elements and their function are well understood routine and conventional in the art.
An audio sensor is described in the disclosure as a component that is generic and conventionally used and known in the art: “…audio recording signals generated by one or more microphones or other audio sensors.” [¶¶ 42 – published app].
A displacement sensor is described in the disclosure as a component that is generic and conventionally used and known in the art: “…chest movement signals generated by one or more cameras, laser rangefinders, or other displacement sensors.” [¶¶ 42 – published app]; “displacement sensors 300a, 300b may be any device capable of visually capturing data” [¶¶ 56 – published app].
Accordingly, in light of Applicant’s specification, “an audio sensor” and “a displacement sensor” and their function are considered well-understood routine and conventional in the art, performing presolution activities that are merely data gathering steps for the abstract idea in Claim 1.
Additionally, the claimed “processing unit” is reasonably construed as a generic computing device. Like SAP America vs Investpic, LLC (Federal Circuit 2018), it is clear, from the claims themselves and the specification, that these limitations require no improved computer resources, just already available computers, with their already available basic functions, to use as tools in executing the claimed process. See MPEP 2106.05(f).
Furthermore, Applicant’s specification does not describe any special programming or algorithms required for the “processing unit” This lack of disclosure is acceptable under 35 U.S.C. §112(a) since this hardware performs non-specialized functions known by those of ordinary skill in the computer arts. By omitting any specialized programming or algorithms, Applicant's specification essentially admits that this hardware is conventional and performs well understood, routine and conventional activities in the computer industry or arts. In other words, Applicant’s specification demonstrates the well-understood, routine, conventional nature of the above-identified additional elements because it describes these additional elements in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a) (see MPEP 2106.05(d)(I)(2) and 2106.07(a)(III)). Adding hardware that performs “‘well understood, routine, conventional activit[ies]’ previously known to the industry” will not make claims patent-eligible (TLI Communications along with MPEP 2106.05(d)(I)).
The recitation of the above-identified additional limitations in Claims 1 and 12 (and their respective dependent Claims 2-11 and 13-15) amounts to mere instructions to implement the abstract idea on a computer. Simply using a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general-purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not provide significantly more. See MPEP 2106.05(f) along with Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); and TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Moreover, implementing an abstract idea on a generic computer, does not add significantly more, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea of intermediated settlement on a generic computer.
A claim that purports to improve computer capabilities or to improve an existing technology may provide significantly more. See MPEP 2106.05(a) along with McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-15, 120 USPQ2d 1091, 1101-02 (Fed. Cir. 2016); and Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36, 118 USPQ2d 1684, 1688-89 (Fed. Cir. 2016). However, a technical explanation as to how to implement the invention should be present in the specification for any assertion that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes. That is, per MPEP 2106.05(a), the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. Here, Applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. Instead, as in Affinity Labs of Tex. v. DirecTV, LLC 838 F.3d 1253, 1263-64, 120 USPQ2d 1201, 1207-08 (Fed. Cir. 2016), the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution.
For at least the above reasons, the method and systems of Claims 1 and 12 (and their respective dependent Claims 2-11 and 13-15) are directed to applying an abstract idea as identified above on a general purpose computer without (i) improving the performance of the computer itself or providing a technical solution to a problem in a technical field according to MPEP 2106.05(a), or (ii) providing meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that these claims amount to significantly more than the abstract idea itself according to MPEP 2106.04(d)(2) and 2106.05(e).
Taking the additional elements individually and in combination, the additional elements do not provide significantly more. Specifically, when viewed individually, the above-identified additional elements in independent Claims 1 and 12 (and their respective dependent Claims 2-11 and 13-15) do not add significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment according to MPEP 2106.05(h). When viewed as a combination, these above-identified additional elements simply instruct the practitioner to implement the claimed functions with well-understood, routine and conventional activity specified at a high level of generality in a particular technological environment according to MPEP 2106.05(h). When viewed as whole, the above-identified additional elements do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself according to MPEP 2106.04(d)(2) and 2106.05(e). Moreover, neither the general computer elements nor any other additional element adds meaningful limitations to the abstract idea because these additional elements represent insignificant extra-solution activity according to MPEP 2106.05(g). As such, there is no inventive concept sufficient to transform the claimed subject matter into a patent-eligible application as required by MPEP 2106.05.
Regarding dependent claims 2-11 and 13-15, the limitations of these claims further define limitations directed to the abstract idea. As such, claim 1-15 when analyzed as a whole, do not appear to be patent eligible for the reasons set forth above.
Conclusion
Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michael D’Abreu whose telephone number is (571) 270-3816. The examiner can normally be reached on 7AM-4PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Hamaoui can be reached at (571) 270-5625. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL J D'ABREU/Primary Examiner, Art Unit 3796
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